*46Dissenting Opinion.
Bermudez, C. J.The complaint of the relators is that they were •committed for contempt by an incompetent court, without observance of the rule of proceedings in such cases.
It cannot be doubted that the court had jurisdiction to make peremptory the mandamus addressed to the council directing the budgetting, ■etc., of the claim of the complainant, and had authority to enfoi'ce obedience to its absolute mandate, in the mode provided by law.
The mandamus was directed to the board of councilman and to the members composing it. The failure of the members is the failure of the board. All the members should have met and should have complied with the order of court. No discretion was left them in the matter. For such failure, they are, as the component parts of the board, amenable for contempt as the board itself could be and would be, if it were a tangible or natural person.
The mandate not having been complied with by tlie board, all the members are delinquent and the aggrieved party lias no right to judge and determine which of those members are or not guilty of contravening the peremptory command.
The proceeding should be directed, not agaiust certain members singled out, but against each and all, in order that they respectively might show cause why they should not be punished for contempt.-
The councilmen who abstained from attendance may be as guilty as those who obstructed obedience, for it was their duty to be present and carry out the instructions of the court.
It is by their appearance on the rule for contempt and their defense, that the guilt or innocence of each and all is to be determined by the court.
If, in the course of the proceedings, it appear that some members -have done all in their power to comply with the judicial command, they must be exonerated; but, if on the other hand, it is established that other members whose concurrence was indispensable, have not .given it, either by acting in direct opposition or by omitting to act, the penalty attached to disobedience should be visited alike upon all who are recreant, for they were left no alternative. They are not -called upon to determine whether the thing ordered shall or not be •done ; but they are commanded to do it, unconditionally.
In the present instance, it appears that the concurrence of one more ■member would have carried out the order of the court.
If the relator in whose favor the mandamus was made peremptory, .had a right to leave out the members wlio did not appear at the meet*47ing, he had an equal right to do the same as to seven of the councilmen who were brought to the bar for contempt.
Surely he could do neither without gross and crying injustice.
The proceeding against all the members guilty or not, is required by logic and is indispensable in the interest of public order, to prevent reprehensible discrimination.
While under the application for a prohibition, the question of jurisdiction has come up and been decided, under that for a certiorari, the proceeding by rule against certain of the members only, is submitted for consideration, that its validity in point of form may be ascertained.
Although the court had jurisdiction to make the mandamus peremptory and to enforce obedience to it, it was without authority to proceed ■ against a few ; but should have done so against the body represented by all the members, reserving its action to exonerate and to punish according as each member would or not purge himself by his conduct.